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1991 DIGILAW 519 (CAL)

Bank of Tokyo Ltd. v. Union of India

1991-12-12

SUSANTA CHATTERJI

body1991
JUDGMENT The judgment of the Court was as follows :–– The present writ petition has been filed for a Writ of Mandamus commanding the respondents including the respondents No. 8 the Central Government Industrial Tribunal, Calcutta, to rescind, withdraw and cancel the impugned order of reference dated 18th June, 1991, as annexed to the petition and marked by the letter ‘H’ and to forbear from giving any or further effect and from proceeding or causing to be proceeded with the said impugned order upon declaration that the respondent No. 4, Sri Tarun Tapan Das, was never a workman of the petitioner No. 1, the Bank of Tokyo Ltd., and that the termination and/or non-renewal of the said contract cannot assume the scope of an industrial dispute. It is stated in detail that by and under the terms of contract made between the petitioner No. 1 and the respondent No. 4, said Tarun Tapan Das rendered service as a Computer Operator on daily basis for four hours a day at anytime between 11 A.M. to 4.00 P.M. i.e. on "on work no pay basis". Subsequently Civil suit was filed by some of the workman of the bank alongwith the respondent No. 4 as a workman for declaration that the post of Clerk-cum-Typist be filled up from the temporary staff who have been working continuously for more than 240 days in a calendar year and for further declaration that the post of EDP Officer be filled up by way of promotion from the existing staff, and for permanent injunction restraining the defendants from filling up the post of Clerk-cum-Typist or any other like post without absorbing temporary staff. Subsequently a settlement was arrived at and in consequence thereof the suit was allowed to be dismissed for non-prosecution stating clearly that since the defendant bank decided to absorb the plaintiffs in the post of Typist and sub-staff, plaintiffs do not want to proceed with the above suit. Admittedly, the respondent No.4 was one of the plaintiffs and his claim was a subject matter of that suit and he was a party at the time of dismissal of the suit for non-prosecution. Admittedly, the respondent No.4 was one of the plaintiffs and his claim was a subject matter of that suit and he was a party at the time of dismissal of the suit for non-prosecution. Thereafter, an alleged complaint being made, the impugned reference was alleged to have been caused which runs as follows :–– "Whether the action of the management of the Bank of Tokyo Ltd., Calcutta, in terminating the service of Sri Tarun Tapan Das, Part-time Computer Operator, with effect from 12.3.90 is legal and justified ? If not, to what relief he is entitled to ?" 2. The said reference has since been challenged before this Court on the ground that the purported conciliation is patently bad illegal and untenable in law and that the respondent No. 4 while selecting to join the said suit and after the said suit being dismissed on the terms of the settlement, is not permitted in a circuitous way to raise an industrial dispute and cause the reference to be pursued to the greatest prejudice of the interest of the employer bank. It is strongly alleged that the settlement in the said suit was and is binding upon the respondent No. 4 having the like force of a degree and since he relinquished his right, no industrial dispute can be raised and the steps taken thereafter are contrary to and in conflict with the provisions of the Industrial Disputes Act and the impugned reference is invariably defective and the same has been made without having any lawful jurisdiction. Being aggrieved thereby the petitioner has filed the present petition seeking reliefs as indicated above. 3. The writ petition is contested mainly by the respondent No. 4, Sri Tapan Tarun Das by filing an Affidavit-in-Opposition. It is disclosed that as a Computer Technologist he was engaged on casual basis and as he had been discharging his duties since 15th October, 1987 till 12th March, 1990, he had the right of being absorbed. The job done by the workman being in perennial nature and having served for a long period his right cannot be denied and as such an industrial dispute has been raised and the reference is well-justified and the petitioner is not permitted to challenge the reference in the manner as done in the instant case. The other allegations of the petitioner are also denied and disputed. 4. The other allegations of the petitioner are also denied and disputed. 4. Having heard the learned counsel for the petitioner, the respondent no. 4 workman and for the Central Government, this Court finds that admittedly the respondent no. 4 is a temporary worker in terms of his specific contract. Undisputedly a civil suit was filed where the claim of the respondent no. 4 to be absorbed as a permanent employee of the bank was made. There were other points of dispute with regard to the absorption of Clerk-cum-Typist. In the civil suit being Title Suit No. 184 of 1989 in the City Civil Court at Calcutta the respondent no. 4 was the plaintiff no. 3 and there was a prayer for declaration that the post of EDP Officer be filed up by way of promotion from the existing staff. Subsequently, a settlement was arrived at between the plaintiffs and the defendant employer bank. Pursuant to such settlement the Typist-cum-Clerks were absorbed and there is no reference of the case of the respondent no. 4 and it is deemed to have been negatived accordingly. Thereafter, the grievance of the respondent no. 4 has started and in consequence thereof the impugned has been made. The only dispute raised before this Court is as to whether there is proper exercise of jurisdiction to make the reference in view of the admitted facts and the circumstances as described above. The respondent no. 4 being a Party to the civil suit and having relinquished his right has had to cause of action to make a further grievance and cause a reference to be made. The attention of the Court has been drawn to various reported decisions namely (1) AIR 1979 SC p. 170 at Paragraph 6, and (2) AIR 1985 SC 860 at paragraph 5, (3) AIR 1989 SC 1965 at paragraphs 12 & 13, (4) AIR 1968 Madras p. 257, (5) AIR 1991 SC p. 1546 and (6) AIR 1991 SC 15. It is mainly urged that in view of the case of Premier Automobile the dispute raised in the Civil Court could not be raised and whatever steps taken by the respondent no. 4 in the Civil Court should be ignored as proceeded without jurisdiction. It is mainly urged that in view of the case of Premier Automobile the dispute raised in the Civil Court could not be raised and whatever steps taken by the respondent no. 4 in the Civil Court should be ignored as proceeded without jurisdiction. There is no bar and/or impediment for the workmen to raise a proper industrial dispute and by exercising the jurisdiction in the proper perspective the reference has been made and the writ Court is the proper Forum to challenge the same. 5. The attention of this Court has been drawn to the ratio of the other reported decision that apart from the five classes of cases as envisaged in the case of Premier Automobiles there can be a civil suit and the nature of the grievances of the workman no. 4 is not holding a bar and/or prohibited to be considered by the Civil Court. The nature of the grievance by way of a declaration can certainly be urged in the Civil Court and the decision of the Premier Automobiles case could not be an embargo on filing such a suit by the respondent no. 4 alongwith the other plaintiffs. If the suit was lawfully filed claiming reliefs it cannot be said that steps taken before the Civil Court are without having any consequences in the eye of law. A suit is filed, decided, withdrawn with leave or without leave. The consequence follows as to the dismissal of the suit by way of decreeing the suit and by dismissing the suit. If an issue is decided the scope for application of the principle of res judicata and constructive res judicata is there by looking at the provisions of Section 11 of the Code of Civil Procedure. If a specific issue is not decided, then the scope for consideration of the consequence as to the withdrawal of the suit and/or abandonment of the claim and the applicability of or 23 of the Civil Procedure Code will arise. A specific suit is filed with a specific prayer and the parties chose to abandon a part of the claim and allowed the suit to be dismissed for default or for non-prosecution. A question has arisen as to whether it is open to the self-same parties to move another jurisdiction without getting the order of the Civil Court recalled. 6. A specific suit is filed with a specific prayer and the parties chose to abandon a part of the claim and allowed the suit to be dismissed for default or for non-prosecution. A question has arisen as to whether it is open to the self-same parties to move another jurisdiction without getting the order of the Civil Court recalled. 6. With great anxiety, this Court has considered the submissions made on behalf of the respective parties. This is not a question simpliciter that a reference has been made and the legality thereof may well be challenged before the Tribunal. A serious question has been raised as to the point of jurisdiction inasmuch as when a party had chosen to go to the Civil Court and while the Civil Court has jurisdiction to decide the case in accordance with law, and thereafter the parties with their eyes open, have got the suit dismissed for non-prosecution cannot come to any other forum to ventilate the self-same grievance. Looking at the materials in depth and considering the provisions of law, this Court is of the view that steps taken and the acts done and/or caused to have been done by the respondents for issuing the Order of Reference are not permitted in law as they suffer from inherent defects. 7. Considering this aspect, this Court finds sufficient force in the argument advanced on behalf of the petitioner. The claim of the respondent No. 4 being negatived by an appropriate settlement, cannot be the subject matter of the Reference or form an industrial dispute to be gone into by the Tribunal. Any further proceeding thereby will be found to be an abuse of process of law. 8. For the foregoing reasons the writ petition is allowed. 9. An appropriate writ is issued commanding the respondents to quash the impugned Reference. No order as to costs. All parties to act on a signed copy of the operative portion of the judgment on the usual undertaking.